[2019] KECA 770 (KLR)
The Court of Appeal held that since the original suit (PMCC No. 918 of 1991) was filed in a court lacking jurisdiction, it was a nullity from the outset. Consequently, the High Court Civil Suit No. 248 of 1997, which was based on the original suit, was also a nullity. As a result, the present appeal, being...
Source-derived case information.
- Citation
- [2019] KECA 770 (KLR)
- Parties
- Appellant: Phoenix of E.A. Assurance Company Limited; Respondent: Simeon Muruchi Thiga t/a Newspaper Service
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed as a nullity
- Judges
- J Karanja, F Sichale
- Legal Topics
- Jurisdiction of Courts, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phoenix of E.A. Assurance Company Limited
Appellant
Simeon Muruchi Thiga t/a Newspaper Service
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court Civil Suit No. 248 of 1997 was a nullity ab initio due to lack of jurisdiction in the original suit.
- 2 Whether the appeal can be sustained if the underlying suit is a nullity.
Ratio Decidendi
The Court of Appeal held that since the original suit (PMCC No. 918 of 1991) was filed in a court lacking jurisdiction, it was a nullity from the outset. Consequently, the High Court Civil Suit No. 248 of 1997, which was based on the original suit, was also a nullity. As a result, the present appeal, being predicated on a null and void suit, could not be sustained and was itself a nullity. The court relied on its prior judgment in Civil Appeal No. 244 of 2010, which had already determined the issue of jurisdiction and nullity, and found no basis to depart from that reasoning. The appeal was therefore dismissed.
Court Disposition
appeal dismissed as a nullity
Orders
- The appeal is dismissed.
- No order as to costs in this appeal.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KARANJA, GATEMBU & SICHALE, JJ.A)
CIVIL APPEAL NO. 6 OF 2018
BETWEEN
PHOENIX OF E.A. ASSURANCE
COMPANY LIMITED.............................................APPELLANT
AND
SIMEON MURUCHI THIGA
T/A NEWSPAPER SERVICE.............................RESPONDENT
(An Appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Olga Sewe, J.) dated 2ndSeptember, 2016
in
HCCC NO. 248 OF 1997)
*****************
JUDGMENT OF THE COURT
This appeal arises from the decision of the High Court (Olga Sewe, J.)dated 2nd September, 2016 in High Court Civil Case No. 248 of 1997. ThisCourt has in its judgment in Civil Appeal No. 244 of 2010 determined that High Court Civil Suit No. 248 of 1997 was a nullity ab initio as the original suitbeing PMCC No. 918 of 1991 was null and void ab initio, it having been filed in a court without jurisdiction. This appeal cannot therefore lie as the same also amounts to a nullity.
For reasons given in our Judgment in Civil Appeal No. 244 of 2010, a copy of which is also filed in this record, we dismiss this appeal but with no order as to costs having awarded costs in Civil Suit No. 244 of 2010.
Dated and delivered at Nairobi this 10thday of May, 2019.
W. KARANJA
....................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
......................................
JUDGE OF APPEAL
F. SICHALE
.....................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR